1. This matter arises out of a proposed utility-scale wind energy development by a private company in a "Limited Use"- California Desert Conservation Area in Imperial County, California. Central legal questions in this case are: (1) whether the specific land use plan was legally amended to allow wind energy development in this area; and, (2) whether the private developer, Pattern Energy, complied with the legal requirements to obtain a Right of Way Grant for wind energy development? An answer of "No" to either question means the Record of Decision ("ROD") issued by the United States Department of Interior ("DOI"), Bureau of Land Management ("BLM") must be permanently enjoined.
2. For utility-scale wind energy development, the BLM in Washington D.C. has established a Wind Energy Development Program with a policy goal of "Smart from the Start." To that end, in accordance with the National Environmental Policy Act ("NEPA") and the Federal Lands Policy and Management Act ("FLPMA"), the BLM has established regulations, policies, and guidelines that govern the proposed development of wind energy on BLM land, to wit: a Wind Energy Programmatic Environmental Impact Statement; Wind Energy Plan of Development; BLM NEPA Guidelines; BLM Land Use Handbook; and, Instruction Memoranda issued by the Director of the BLM. (Collectively at times the BLM Wind Energy Development Program, or BLM Wind Program.)
3. Wind projects are required to be designed, engineered and scaled to topographic maps at a specific "project-level" before the NEPA environmental review and analysis. Topographic maps and project specific designs allow proper scrutiny of a Plan of Development. Topographic maps and scaled drawings allow reviewing parties to verify the amount of land disturbance based on the exact locations and dimensions of turbines, access roads, electrical lines, and other facilities. Topographic maps are also required to consider whether project footprints encroach into sensitive habitat, waterways, cultural resources, historic routes and protected aquifers. Without knowing precisely what is going to be built where, a proper NEPA analysis cannot be performed. This legal process is of critical importance.
4. This project did not follow the above wind development mandates. Project specific topographic maps, designs and engineering packages were not submitted during the
NEPA environmental review process. Without this information, NEPA, the APA, and FLPMA were violated, which means the BLM could not legally approve the Project for construction.
5. In considering this project, the BLM, through its El Centro Field Office, was required to, but did not follow and "tier" to the BLM Wind Program. The BLM illegally amended the California Desert Conservation Area Plan to allow wind energy development in an ineligible area without the required wind resources.